PITTSBURGH – A Louisiana woman alleges that her late husband died as a result of a device the defendants manufactured and sold to treat sleep apnea, without being informed until after his passing that the device in question had been subject to a widespread recall.
Shawne Thomas (individually and on behalf of the wrongful death beneficiaries of Rodney Thomas, deceased) of Church Point, La. filed suit in the Allegheny County Court of Common Pleas on April 13 versus Philips RS North America, LLC (formerly known as “Respironics, Inc.”) of Pittsburgh, Koninklijke Philips N.V. of Amsterdam, The Netherlands and Philips North America, LLC, of Cambridge, Mass.
“In September of 2019, the late Rodney Thomas was directed by his physicians at Opelousas General Hospital – Sleep Disorders Center, to begin using a Continuous Positive Airway Pressure (CPAP) device nightly. Shortly thereafter, Mr. Thomas used and continued to use a Philips Respironics DreamStation, SN# J25793296F3CF manufactured by Respironics, Inc. Mr. Thomas used the Philips DreamStation CPAP device, nightly from the date of receipt until his death on June 22, 2021. It is believed and therefore alleged that as a result of Mr. Thomas’s use of this CPAP machine, he developed nasopharyngeal cancer which resulted in his death,” the suit says.
“On June 26, 2021, plaintiff, Shawne Thomas, widow of Rodney Thomas, received an email from CPAP.com advising her that his Philips’s Respironics Remstar Pro and DreamStation Auto CPAP devices were subject to a recall, due to the presence of a dangerous PE-PUR Foam that could cause the users to suffer from adverse health effects, including cancer and organ failure. She was advised to verify whether her husband’s device(s) were subject to the recall by submitting the serial numbers for his devices to an online database Philips established. Plaintiff Shawne Thomas received confirmation that her husband, Mr. Thomas’s CPAP device(s) were subject to recall.”
The suit adds that on April 26, 2021, Philips made a public announcement disclosing it had determined there were risks that the PE-PUR Foam used in certain CPAP, Bi-Level PAP, and mechanical ventilator devices it manufactured may degrade or off-gas under certain circumstances – and further, that on June 14, 2021, Royal Philips issued a recall of its CPAP, Bi-Level PAP and mechanical ventilator devices containing PE-PUR Foam in the United States, because Philips determined that (a) the PE-PUR Foam was at risk for degradation into particles that may enter the devices' pathway and be ingested or inhaled by users and (b) the PE-PUR Foam may off-gas certain chemicals during operation.
“At no time prior to its regulatory update on April 26, 2021, did Philips disclose to purchasers or users of the recalled devices that the PE-PUR Foam contained therein may off-gas or degrade upon use. Similarly, prior to the update, Philips did not disclose any health risks associated with use of the recalled devices. Defendants have not disclosed when they first discovered or received reports from users of their Sleep & Respiratory Care devices ‘regarding the presence of black debris/particles within the airpath circuit (extending from the device outlet, humidifier, tubing, and mask),” the suit states.
“It is believed and therefore averred that in November of 2015, that defendants were made aware that a preventative maintenance procedure for Trilogy ventilator devices was being implemented by another Philips entity due to potential foam degradation, and related complaints, on Trilogy ventilator devices in the field.”
For counts of breach of express warranty, breach of implied warranty of merchantability, fraudulent misrepresentation, fraud by omission, negligent misrepresentation, unjust enrichment, violation of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law, medical monitoring and wrongful death, the plaintiff is seeking, jointly and severally, damages in excess of the amount required for compulsory judicial arbitration, for compensatory damages, punitive damages, interest, costs of suit and such other and further relief as this court deems just.
The plaintiff is represented by Kenneth R. Behrend of Behrend Law Group in Pittsburgh, plus Jason Giles and John Love Norris IV of The King Firm, in New Orleans, La.
The defendants have not yet retained legal counsel.
Allegheny County Court of Common Pleas case GD-23-004917
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com